[1997] 1 F.C. 260
IMM-2008-95
The Minister of Citizenship and Immigration (Applicant)
v.
Josef Nemsila (Respondent)
and
Canadian Jewish Congress, Friends of Simon Wiesenthal Center for Holocaust Studies, The League for Human Rights of B’Nai Brith Canada, The Coalition of Concerned Congregations on the Law Relating to War Crimes and Crimes Against Humanity including those of the Holocaust and Kenneth M. Narvey (Intervenors)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Nemsila (T.D.)
Trial Division, Jerome A.C.J.—Toronto, January 31 and February 1; Ottawa, August 23, 1996.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Respondent resident of Canada since 1950 although not Canadian citizen — Reports under Immigration Act, s. 27 indicating respondent, convicted in Czechoslovakia as German collaborator who was responsible for execution of civilians during World War II, had come into Canada by material misrepresentation — Whether “lawfully admitted” to Canada under Immigration Act, s. 2(l) — Immigrant obtaining leave to enter Canada by fraud, deception not “lawfully” admitted — All requirements of Act in force at time immigrant entered Canada must be complied with — Term “came into” in Act, s. 19(1)(e)(viii) not synonymous with “admission”, “landing” — Statutory protection against removal limited to Canadian citizens, domiciled persons “lawfully admitted” — Adjudicator erred in law in holding respondent could not be subject to deportation order.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C. 1927, c. 93, s. 2 “land”, “landed” or “landing”.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(e) (as am. by S.C. 1992, c. 49, s. 16), (2)(g) (as am. idem), (3) (as am. idem), 123.
Immigration Act (The), S.C. 1952, c. 42, ss. 2 “Canadian domicile”, 3, 4, 19.
CASES JUDICIALLY CONSIDERED
APPLIED:
The King v. Jawala Singh (1938), 53 B.C.R. 179; [1938] 4 D.L.R. 381; 3 W.W.R. 241; 71 C.C.C. 96 (C.A.); Michelidakis vs Rejimbald (1917), 23 R. de Jur. 375 (Que. Sup. Ct.); Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R. 267; 15 Imm. L.R. (2d) 40 (F.C.T.D.); Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; 142 N.R. 173 (F.C.A.); leave to appeal to S.C.C. refused [1992] 2 S.C.R. viii.
AUTHORS CITED
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Markham, Ont.: Butterworths, 1994.
APPLICATION for judicial review of Adjudicator’s decision finding that the respondent, reported as having come into Canada by material misrepresentation, was landed in Canada, had acquired Canadian domicile in accordance with the provisions of The Immigration Act and could not therefore be subject to a deportation order. Application allowed.
COUNSEL:
C.A. Amerasinghe, Q.C., Donald A. MacIntosh and Bonnie J. Boucher for applicant.
Barbara L. Jackman and Ronald P. Poulton for respondent.
Ed M. Morgan for intervenor Canadian Jewish Congress.
John B. Laskin for intervenor Friends of Simon Wiesenthal Center for Holocaust Studies.
David Matas for intervenor
APPEARANCE:
Kenneth M. Narvey on his own behalf and on behalf of The Coalition of Concerned Congregations.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Jackman & Associates, Toronto, for respondent.
Davies, Ward & Beck, Toronto, for intervenor Canadian Jewish Congress.
Tory Tory DesLauriers & Binnington, Toronto, for intervenor Friends of Simon Wiesenthal Center for Holocaust Studies.
David Matas, Winnipeg, for intervenor The League for Human Rights of B’Nai Brith Canada.
Intervenor on his own behalf and on behalf of The Coalition of Concerned Congregations: Kenneth M. Narvey, Toronto.
The following are the reasons for order rendered in English by
Jerome A.C.J.: This is an application for judicial review of the decision of an immigration Adjudicator, J. E. McNamara, rendered on July 18, 1995.
FACTS
The respondent was born on March 14, 1913, in Czechoslovakia. He immigrated to Canada on July 25, 1950, and has resided here since that time, although he has not become a Canadian citizen. On April 5 and 6, 1995, two reports were prepared pursuant to paragraphs 27(2)(g) [as am. by S.C. 1992, c. 49, s. 16] and 27(1)(e) [as am. idem] of the Immigration Act [R.S.C., 1985, c. I-2] alleging that Mr. Nemsila had come into Canada by material misrepresentation. Both reports were based on the allegations that the respondent:
— was granted landing on July 25, 1950 at Halifax;
— was a member of the Hlinka Guard from 1939-1945 and was a company commander of a unit of the alerted Hlinka Guard (POHG) which was an organization which collaborated with the German occupation forces in Slovakia during the period 1944-45;
— participated in and was responsible for the arrest, detention, interrogation and the execution of civilians during the fall and winter of 1944-45, in the Banska Bystrica region of Slovakia and near the villages of Krupina and Krmenicka in Slovakia;
— was convicted on December 4, 1947 in Czechoslovakia of the offence that he took part in the persecution of participants in the (Slovak National) uprising (in 1944) and resistance fighters, and generally assisted the (German) occupation forces and authorities, for which he received the sentence of two years in prison and three years in a special labour camp;
— served the two years in prison for this offence but escaped custody from the special labour camp in 1949 and fled to Austria;
— when he applied to immigrate to Canada made misrepresentations during the interviews with visa control and immigration officers regarding his employment and military service during the Second World War, and his membership and activities in the Hlinka Guard and the alerted unit of the Hlinka Guard, and regarding his conviction in Czechoslovakia. This information was material to his admission to Canada.
— came into Canada on July 25, 1950, at Halifax by not fully disclosing accurate and correct information regarding his residence, occupations, military service and membership in the Hlinka Guard, and the alerted unit of the Hlinka Guard, and the fact of his conviction in Czechoslovakia, and by averting further inquiries into his background, answers to which would have led to the refusal of his application for an immigrant visa.
The reports contend that were it not for the misrepresentations made by the respondent when he came to Canada, he would not have been allowed to enter the country. An inquiry was convoked pursuant to subsection 27(3) [as am. idem] of the Act to investigate the allegations set out in the reports. Hearings commenced on April 24, 1995, and were adjourned to allow the respondent an opportunity to retain counsel. On May 31, 1995, the inquiry resumed. Counsel for the respondent raised a preliminary issue regarding the question of Canadian domicile. Mr. Nemsila took the position that, even if all of the allegations set out in the section 27 reports were proven at the inquiry, he was nevertheless protected from removal pursuant to section 123 of the Immigration Act since he had acquired Canadian domicile prior to April 10, 1978. That section provides as follows:
123. Where a person acquired Canadian domicile in accordance with the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1970, and did not lose Canadian domicile before April 10, 1978, a deportation order may not be made against that person on the basis of any activity, carried on by him before that date, for which a deportation order could not have been made against him under that Act.
The Adjudicator decided that it would be best to determine the legal issue of domicile prior to hearing evidence on the substance of the allegations made against Mr. Nemsila. The legal question was framed as follows:
Whether Mr. Nemsila is protected from a deportation order pursuant to the provisions of Section 123 of the Act, even if the factual allegations in the s. 27(2) report are correct.
The parties made written submissions and on July 18, 1995, when the inquiry resumed, presented their oral arguments. The Adjudicator found that the respondent was landed in Canada, that he had acquired Canadian domicile in accordance with the provisions of The Immigration Act [S.C. 1952, c. 42], and that he could not therefore be subject to a deportation order. The decision states as follows, at page 11:
The Minister of Citizenship and Immigration is asking that Josef Nemsila be made the subject of a deportation order pursuant to Section 27(2)(g), of the Act. It is alleged he is a person who never gained “landing” in Canada because he purportedly made misrepresentations of material facts at the time of his arrival in Canada. I find that regardless of the fact that he may have made a misrepresentation of a material fact, the current law is that Mr. Nemsila cannot be ordered deported for this reason. He was lawfully admitted to Canada and acquired Canadian domicile five years after he was landed and he is a permanent resident. Parliament was explicit in 1978 in saying that a person who acquired domicile could continue to be protected from removal for any activities carried on by that person prior to 1978 for which that person could not have been deported at that time.
The Minister now seeks to have that decision set aside on the grounds that the Adjudicator’s interpretation of the relevant statutory provisions was an error of law.
The definition of “land”, “landed” or “landing” in the Immigration Act [R.S.C. 1927, c. 93], in 1950, when Mr. Nemsila came to Canada was as follows:
2. …
(l) “land,” “landed” or “landing,” as applied to passengers or immigrants, means their lawful admission into Canada by an officer under this Act, otherwise than for inspection or treatment or other temporary purpose provided for by this Act;
In 1955, when Mr. Nemsila would have been eligible to acquire domicile, the relevant sections of The Immigration Act, 1952, read as follows:
2. …
(c) “Canadian domicile” means Canadian domicile acquired and held in accordance with section four;
…
4. (1) Canadian domicile is acquired for the purposes of this Act by a person having his place of domicile for at least five years in Canada after having been landed in Canada.
The Adjudicator found that the respondent had been “lawfully admitted” to and landed in Canada in 1950 since he had obtained a visa, had presented himself for examination at the port of entry, and the ship’s manifest had been stamped “landed immigrant” across from his name. That Mr. Nemsila may have made misrepresentations during interviews with visa control and immigration officers and did not fully disclose information which would have led to the refusal of his application for an immigrant visa did not, in the Adjudicator’s view, affect the lawfulness of his admission. Provided an immigrant visa had been issued to Mr. Nemsila, the means by which it was obtained, whether they be fraudulent or otherwise, would have been of no relevance once he had been in the country for five years.
ANALYSIS
The first issue is what meaning is to be given to the term “lawful admission”. I do not agree that an immigrant who obtained leave to enter Canada by fraud or deception can be said to have been “lawfully” admitted. By qualifying the word “admission” with the term “lawful”, Parliament clearly intended “lawful admission” to mean something more than having a port-of-entry inspector rubber stamp the ship’s manifest or an individual’s passport with the words “landed immigrant”. Lawful admission requires compliance with all of the requirements of the Act in force at the time the immigrant entered Canada.
There is support for this reasoning in the jurisprudence. In The King v. Jawala Singh (1938), 53 B.C.R. 179 (C.A.), the Court stated as follows, at page 185:
Counsel for the respondent pressed us with his submission that when examined by the Board of Inquiry in 1937 the respondent was a Canadian citizen, having acquired this status since his re-entry into Canada in 1935. That submission, to my mind, cannot be supported. The entry of the respondent into Canada in 1935 was an unlawful entry and in consequence the respondent cannot be said to have “landed” in Canada within the meaning of the Immigration Act …. Canadian domicil cannot be acquired, for the purposes of the Immigration Act, except by a person having his domicil for at least five years in Canada after having been “landed” therein, i.e. , after having made a “lawful admission” into Canada. The present respondent fails to fulfil both conditions precedent to the acquisition of Canadian domicil ….
In Michelidakis vs Rejimbald (1917), 23 R. de Jur. 375, the Superior Court of Quebec stated, at page 377:
[translation] Pursuant to the Immigration Act, domicile may be acquired in this country only by someone who enters it legally. Degridakis having entered Canada on false pretences or furtively, was therefore not able to acquire legal domicile here within the meaning of the Immigration Act.
In Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R. 267 (F.C.T.D.); upheld on appeal to the Federal Court of Appeal [(1992), 9 C.R.R. (2d) 149]; leave to appeal to the Supreme Court of Canada denied [1992] 2 S.C.R. viii, the Court found that Mr. Luitjens had made material misrepresentations and had knowingly concealed information which would have demonstrated his inadmissibility. He was, on that basis, determined not to be lawfully admitted to Canada. That decision is explicitly contrary to the respondent’s assertion in the present case that “lawful admission” means only procedural compliance with the Act or the visa-related requirements to enter Canada.
The Adjudicator in the present case determined that since the question of landing was not discussed in the Luitjens case nor were the provisions of section 123 of the Immigration Act argued or considered, the decision had no application to the issue before him. In my view, he erred in this regard. The Luitjens decision confirms that “lawful admission” has a substantive as well as a procedural element. Had this Court adopted the respondent’s interpretation of “lawful admission”, Mr. Luitjen’s citizenship could not have been revoked since he also had a visa which was stamped “landed immigrant”. That interpretation was rejected however and the Court found that an immigrant who was a member of a prohibited class, at the time he entered Canada, could not obtain “lawful admission” by fraudulent misrepresentation.
Accordingly, if the entry of Mr. Nemsila into Canada in 1950 was based upon deception and misrepresentation as alleged in the section 27 reports, then it was an unlawful admission. If he was not lawfully admitted, it follows therefore that he could not have gained “landing” within the meaning of paragraph 2(l) of the Immigration Act, 1950. If he was never landed, he never acquired Canadian domicile.
I turn now to the Adjudicator’s interpretation of paragraph 19(1)(e) of The Immigration Act, 1952, which was fundamental to his finding that he did not have jurisdiction to make a removal order against the respondent. That provision reads as follows:
19. (1) Where he has knowledge thereof, the clerk or secretary of a municipality in Canada in which a person hereinafter described resides or may be, an immigration officer or a constable or other peace officer shall send a written report to the Director, with full particulars, concerning
…
(e) any person, other than a Canadian citizen or a person with Canadian domicile, who
(i) practices, assists in the practice of or shares in the avails of prostitution or homosexualism.
(ii) has been convicted of an offence under the Criminal Code,
(iii) has become an inmate of a penitentiary, gaol, reformatory or prison or of any asylum or hospital for mental diseases,
(iv) was a member of a prohibited class at the time of his admission to Canada,
(v) has, since his admission to Canada, become a person who, if he were applying for admission to Canada, would be refused admission by reason of his being a member of a prohibited class other than the prohibited classes described in paragraphs (a), (b), (c) and (s) of section 5,
(vi) entered Canada as a non-immigrant and remains therein after ceasing to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant,
(vii) came into Canada at any place other than a port of entry or eluded examination or inquiry under this Act or escaped from lawful custody or detention under this Act,
(viii) came into Canada or remains therein with a false or improperly issued passport, visa, medical certificate or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person,
(ix) returns to or remains in Canada contrary to the provisions of this Act after a deportation order has been made against him or otherwise, or
(x) came into Canada as a member of a crew and, without the approval of an immigration officer or beyond the period approved by such officer, remains in Canada after the departure of the vehicle on which he came into Canada.
(2) Every person who is found upon an inquiry duly held by a Special Inquiry Officer to be a person described in subsection one is subject to deportation.
The Adjudicator interpreted subparagraph (viii) to mean that an immigrant who has acquired Canadian domicile through fraudulent misrepresentation could not be subject to a removal order. In so finding, he accepted the respondent’s argument that section 19 exempted a person with domicile from deportation, where that individual entered Canada by reason of any false or misleading information or other fraudulent or improper means. According to the respondent, if the Minister is correct in his submission that domicile cannot be acquired by a person who was landed after providing false or misleading information, then there would be no purpose to this aspect of section 19 and it would be rendered virtually meaningless. If an individual cannot ever acquire domicile because the admission was not lawful in the first place, the respondent maintains that the protection of domiciled persons from removal for misrepresentation in relation to admission would never be operative. The respondent submits that the clear purpose of subparagraph 19(1)(e)(viii) was to protect from deportation citizens and domiciled individuals who may have acquired admission by providing false or misleading information.
There therefore appears to be a conflict between “lawful admission” as a condition precedent to obtaining domicile in Canada and the apparent protection from deportation provided for in subparagraph 19(1)(e)(viii) for those persons who were admitted by reason of giving false information. As is often the case, it is necessary for the Court to give meaning to both provisions and to reconcile the apparent conflict.
It must be understood that section 19 of the Act is not concerned with the acquisition or loss of domicile nor does it define who was eligible to acquire Canadian domicile. Those matters are governed by the sections of the Act which specifically set out the rules regarding acquisition and loss of domicile. The preamble in paragraph 19(1)(e) is clear that before the section can apply to exempt removal, one must be a Canadian citizen or a person who has acquired Canadian domicile in the manner prescribed by the legislation. They are, therefore, conditions precedent to exemption from removal and for that reason the provisions governing domicile and citizenship must be first properly construed before subparagraph 19(1)(e)(viii) can have any application. Accordingly, the protection of subparagraph 19(1)(e)(viii) can only extend to an immigrant such as Mr. Nemsila if he has satisfied the requirements of domicile as set out in section 4 of The Immigration Act, 1952, which he, for the reasons set out above, cannot have done if the allegations contained in the section 27 reports are correct.
Furthermore, section 19 does not speak of gaining admission into Canada by means of false or misleading information. Subparagraph 19(1)(e)(viii) refers to individuals, who are not citizens or who are not domiciled, who come into Canada by means of false or misleading information. The term “came into” is not synonymous with “admission” or “landing”, words which are given an express and precise meaning in the definition section of the Act.
I am confirmed in my view that the phrase “came into Canada” in subparagraph 19(1)(e )(viii) does not mean “admission” or “landing”, by section 3 of The Immigration Act , 1952, which provides as follows:
3. (1) A Canadian citizen has the right to come into Canada.
(2) Subject to subsection three, a person who is not a Canadian citizen but has acquired and has not lost Canadian domicile shall be allowed to come into Canada.
In accordance with that provision, therefore, individuals who possess the status of citizenship and domicile also possess the right to come into Canada. Should they do so by means of false or misleading information, section 19 will protect them from a removal order. This does not alter the fact however, that they must have first acquired citizenship or domicile in accordance with the provisions of the legislation, which, in the case of domiciled persons, means that they must have been “lawfully admitted”.
The scheme of the Act is such that I think the term “lawful admission” must be construed broadly while the protection from deportation of domiciled persons under section 19 must be construed more narrowly. As stated in Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Markham, Ont.: Butterworths, 1994), at pages 369-370:
In keeping with the current emphasis on purposive analysis, modern courts are particularly concerned that exceptions and exemptions be interpreted in light of their underlying rationale and not be used to undermine the broad purpose of the legislation. In the words of La Forest J. in Air Canada v. British Columbia (1989), 59 D.L.R. (4th) 161, at 197, an exception “should not be construed more widely than is necessary to fulfil the values which support it.”
CONCLUSION
For these reasons, I have concluded that the Adjudicator erred in law and the impugned decision must be set aside. The matter should be remitted to a different Adjudicator for completion and decision in accordance with the Immigration Act and these reasons.
I will withhold issuing the order in this matter until Friday, August 30, 1996, in order to give counsel the opportunity to submit questions for certification to the Federal Court of Appeal.